JUDGMENT

Ram Prasanna Sharma, J. - This acquittal appeal is preferred against the judgment dated 5-2-2016 passed by the Sessions Judge, North Bastar at Kanker in Criminal Appeal No. 27 of 2013 wherein the said court acquitted the respondent for charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act, 1881") reversing the judgment of Chief Judicial Magistrate, Kanker in Criminal Case No. 923 of 2011 dated 27-9-2013.

2. As per version of the appellant, both sides are well known to each other. On account of mutual relation appellant extended credit facility to the tune of Rs.7,00,000/- to the respondent on 15-5-2011. The respondent issued a cheque of Axis Bank, Branch Dhamtari dated 8-7-2011 in favour of the appellant for a sum of Rs.7,00,000/-. The cheque was placed before the Bank of India, Branch Kanker, but it was returned dishonoured due to insufficiency of funds vide written memo dated 9-7-2011. Appellant issued a notice to the respondent for payment of his money on 26-7-2011 through registered post which was duly served on the respondent on 28-7-2011. Despite receiving notice, respondent failed to pay the amount that is why complaint was filed. The trial court convicted the respondent but in appeal the said Sessions Court reversed the finding of the trial court and acquitted the respondent.

3. Learned counsel for the appellant submits as under:

i) From the evidence of complainant Sanjay Gupta (PW/1), Branch Manager of Axis Bank, Priyadutt Panigrahi (PW/2) and PW/3 Shyamlal Sahu, it is established that respondent borrowed a sum of Rs.7,00,000/- from the appellant in presence of Shyamlal Sahu (PW/3) and cheque was issued by the respondent in favour of appellant which was placed before the Bank and same was dishonoured as per version of Branch Manager Priyadutt Panigrahi (PW/2).

ii) Two witnesses were adduced by the respondent namely DW/1 Manjit Singh Thakur and DW/2 Gnanendra Singh Thakur, but respondent Ghanaram Sahu did not enter into witness box to rebut the evidence adduced by the appellant side, therefore, version of the appellant is unrebutted.

iii) Appellant is having turn over of Rs.20,00,000/- per month and as per his cross examination he advanced currency notes of 1000/-, 500/- and 100/- denomination. The entry is made in presence of the respondent. The complainant has proved his financial status though income-tax return is not filed but the same is not relevant to decide the issue between the parties.

iv) When notice is served to respondent for payment of loan amount after dishonouring of cheque, no reply was given by him, therefore, finding of the Sessions court is liable to be set aside and the respondent be convicted for offence under Section 138 of the Act, 1881.

4. On the other hand, learned counsel for the respondent submits as under:

i) A blank cheque was given to the appellant by signing in black ink and no amount was mentioned in the said cheque at the time of delivery of the cheque because the same was blank cheque.

ii) (DW/1) Manjit Singh Thakur deposed that cheque was given for Rs.7,000/- and no income tax account and no cash account of the shop was produced before the trial court .

iii) The appellant admitted that the amount was not filled up by the respondent but it is filled up by the appellant after receiving the blank cheque. The cheque was not issued on 8-7-2011 but same was given four years back from the said date.

iv) Ex.D/2 is notice issued by the respondent to Ku. Rathi Dhruv, Manjeet Singh and appellant. Notice was issued on 15-2-2011 and after that relation between the parties was strained, therefore, question of giving Rs.7,00,000/- in the month of July 2011 does not arise.

v) Appellant deposed before the trial court that one Milan Yadav was present at the time of delivery of Rs.7,00,000/- but the said Milan Yadav is not examined before the trial court, therefore, finding of the Sessions Court is not liable to be interfered with.

5. I have heard counse